Allen v. State

• Decision Date: 22 November 2010
• Docket Number: No. S10A1301.,S10A1301.
• Parties: ALLEN v. The STATE.
• Court: Georgia Supreme Court

702 S.E.2d 869

288 Ga. 263

10 FCDR 1301

ALLEN

v.The STATE.

No. S10A1301.

Supreme Court of Georgia.

Nov. 22, 2010.

Douglas Brian Ammar, Judith Anne O'Brien, Sarah Elizabeth Scott, Tracey Katagi Ledbetter, Sutherland, Asbill & Brennan, LLP, Atlanta, for appellant.

Bettieanne C. Hart, Atlanta, Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Senior Asst. Dist. Atty., Thurbert E. Baker, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Sheila Elizabeth Gallow, Assistant Attorney General, Mary Beth Westmoreland, Deputy Attorney General, for appellee.

Clark Douglas Cunningham, Atlanta, for amicus curiae.

HUNSTEIN, Chief Justice.

Kareem Allen was convicted of the murder of Shamar Edwards and the aggravated assaults of Donald Jumper, Amber McAdory, Patrick Edwards and Quintisha Page. He appeals from the denial of his motion for new trial, ¹ challenging the trial court's denial ofhis motion to sever his trial from that of his co-defendants, the denial of his special demurrer, various other rulings and the failure to give certain jury instructions. Finding no reversible error, we affirm.

1. Construed in the light most favorable to the verdict, the evidence adduced at trial established that appellant and his co-defendants, Thomas, Lamar and Brown, came uninvited to a largeteen party hosted by Ramona Barnes at her home on Baywood Drive, which was located two houses north of the home of appellant's mother. Appellant was seen at the party holding a handgun. After a disagreement arose between appellant and some of Barnes's invited guests, appellant and his co-defendants were asked to leave. Before they left appellant was overheard making threatening statements, including that he would "shoot this whole [obscenity] party up." Shortly thereafter, as the remaining guests were beginning to leave, multiple shots were fired in the direction of the unarmed victims who were in the front yard of Barnes's home. Shamar Edwards was shot in his leg; then, as he tried to run away, he was shot a second time in the back, fatally wounding him. Based on the location of the spent shell casings, the shots were fired from the street in front of appellant's mother's home where appellant and his co-defendants were standing, armed with one and possibly two guns; appellant was seen there at the time of the shootings by witnesses who either knew him already or identified him subsequently. After the shootings appellant went into his mother's house but shortly thereafter re-emerged wearing different clothing. Witnesses at the scene identified appellant as being involved in the shooting to police officers; after his arrest, appellant threatened to kill several witnesses.

Appellant introduced the testimony of six witnesses ² who said that appellant was not standing with his co-defendants but was instead arguing with his mother in her front yard when a co-defendant in the street in front of appellant's mother's home fired the shots at the victims.

"It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient. [Cit.]" Brooks v. State, 281 Ga. 514, 516(1), 640 S.E.2d 280 (2007). The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of murder and aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). His conduct before, during and after the crimes supported the finding that he was a party thereto, notwithstanding the jury's acquittal of appellant on the three weapons charges. OCGA § 16-2-21 ("[a]ny party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto").

2. Appellant contends the trial court erred by denying his motion to sever his trial from that of his co-defendants. "The question of whether to grant a severance in a joint trial for a capital crime in which the death penalty is not sought is within the discretion of the trial court." (Footnote omitted.) Green v. State, 274 Ga. 686, 687(2), 558 S.E.2d 707 (2002). See also OCGA § 17-8-4(a). Appellant "had the burden to make a clear showing that a joint trial was prejudicial and resulted in a denial of due process. [Cit.]" Hanifa v. State, 269 Ga. 797, 805(4), 505 S.E.2d 731 (1998). In determining whether to grant a motion to sever, a trial court should consider three factors: whether a joint trial will create confusion of evidence and law; whether, despite limiting instructions, there is a danger that evidence implicating one defendant will be improperly considered against another defendant; and whether the defendants are asserting antagonistic defenses. Hall v. State, 286 Ga. 358(7), 687 S.E.2d 819 (2010). As to the first factor, our review of the record reveals no evidenceof any confusion and the verdict itself, including appellant's acquittal on six of the thirteen charges, the total exoneration of one co-defendant and the acquittal of the remaining co-defendants on certain charges, demonstrates that the jury fully understood the law and the evidence. See Hanifa v. State, supra. As to the second factor, in light of the trial court's limiting instructions, there was no danger the jury improperly considered against appellant certain testimony regarding a threat made by a co-defendant to a witness, which was uttered days after appellant was arrested, and, for the reasons set forth in Division 4, infra, there was no improper consideration by the jury of the statements made by his co-defendant Brown.

Appellant focuses primarily on the third factor, arguing that there were antagonistic defenses that required severance and that he showed the requisite resulting prejudice, pointing to the trial court's exclusion of the statement codefendant Lamar made to police.³ See Green v. State, supra, 274 Ga. at 688(2), 558 S.E.2d 707 (antagonistic defenses do not automatically require severance unless there is a showing of resulting prejudice). See also Division 6, infra. Appellant claims this statement constituted critical exculpatory evidence the exclusion of which violated his due process rights. ⁴ However, even assuming,arguendo, that antagonistic defenses existed, appellant's contentions regarding the critical exculpatory substance of Lamar's statement are not borne out by the record. Our review of the statement reveals Lamar said nothing that contradicts the witnesses at the party regarding the threats they heard appellant make and, other than noting appellant was with the co-defendants as they walked away from the party, Lamar makes no mention of appellant whatsoever until the arrival of appellant's mother, thereby remaining silent as to whether appellant actively promoted the shooting. See United States v. Williams, 45 F.3d 1481, 1484(I) (10th Cir.1995) (evidence is not exculpatory where one co-defendant in statement to law enforcement fails to mention other co-defendant in the absence of a specific question; such failure to mention "proves nothing"). Lamar's statements about appellant "arguing and fighting" with appellant's mother duplicated testimony by defense witnesses;⁵ likewise, Lamar's statement identifying which co-defendant was the triggerman merely duplicated testimony by State witnesses. Accordingly, because appellant "has not shown any prejudice to his case which might have been avoided by severing the trial [cit.]," Isaac v. State, 269 Ga. 875, 879(7), 505 S.E.2d 480 (1998), we find no abuse of discretion in the trial court's denial of appellant's motion for severance.

3. Appellant's indictment was legally sufficient and was not subject to a special demurrer for the reasons set forth in Metz v. State, 284 Ga. 614(3), 669 S.E.2d 121 (2008).

4. Appellant contends the trial court erred by admitting incriminating statements co-defendant Brown made to witnesses Neal and Fagin. ⁶ Pretermitting whether a proper objection was made to Neal's testimony,⁷ we find no error. Brown'sstatements were made during the pendency of the conspiracy and were admissible against appellant under the co-conspirator exception to the hearsay rule. See Waldrip v. State, 267 Ga. 739(10)(c), 482 S.E.2d 299 (1997); OCGA § 24-3-5. Although appellant was arrested the night of the crimes, he had made no confession to police identifying the other conspirators so as to end the conspiracy. See Arevalo v. State, 275 Ga. 392(5), 567 S.E.2d 303 (2002) (so long as the conspiracy to conceal the identity of the perpetrators of the offense continues, the partiesto such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other). ⁸ The admission of Brown's statements to laywitnesses during the concealment phase of the conspiracy did not violate the Confrontation Clause because his statements were not testimonial. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which overruled Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

5. Appellant contends the trial court erred by limiting his cross examination of the lead detective regarding the Atlanta Police Department's investigation of the detective for underreporting crimes in violation of Georgia law. The original trial judge reviewed the detective's file in camera and then issued his findings, see generally Dempsey v. State, 279 Ga. 546(3), 615 S.E.2d 522 (2005), that the file revealed only that the detective followed illegal orders and was reprimanded for doing so, but was not implicated in the giving of those orders and was not punished for any wrongdoing or indicted on any charges. Based on these findings, the trial court prohibited appellant from cross-examining the detective regarding the matter.

Trial courts are granted wide latitude insofar as the Confrontation...